Strike mishandled

The NLRB has issued a press release concerning an Administrative Law Judge decision to require a Michigan employer to reinstate 148 employees allegedly fired because of their union activity. The order also requires payment of back pay. The UAW called a strike in August of 2008 against Douglas Autotech Corporation. The union had not properly given the notice required by Section 8(d)(3). The union made an unconditional offer to return to work the third day of the strike. The employer locked out the union, but continued to negotiate. Subsequently the company changed course and terminated all the union-represented employees, including those who did not strike. Although a strike conducted without proper Section 8(d)(3) renders the strikers activities unprotected, the ALJ found the delayed terminations after the employer had implemented the lockout and continued negotiations, were flagrantly illegal. Although the press release does not say so, the ALJ must have concluded the employer's post-strike treatment evidenced that the workers remained employees, and that the subsequent terminations could not be justified by the prior unprotected strike. This is a costly miscalculation.